Publication done without consent of respondent

Federal appeal | Industrial and Intellectual Property


Publication done without consent of respondent

Respondent claimed that appellants infringed copyright in his literary works, particularly “Farmans” and “Talikas”.
Appellants admitted that “Farmans 1957-2009 - Golden Edition” included literary works covered by copyrights owned by respondent but claimed that respondent gave consent to publication. Book presented to respondent at 1992 Mehmani ceremony.
It had been printed by appellants few days prior. No indication as to who printed book or prepared compilation and no notice given to respondent, or anyone within his organization, of intention to seek respondent’s consent to reproduction, distribution and sale of copyrighted literary work included in book.
No evidence respondent knew or ought to have known that book not simply compilation printed for family’s personal use. Respondent applied for summary judgment on basis there was no possible genuine issue whether respondent gave consent.
Motion judge granted motion for summary judgment and permanent injunction precluding publication of Golden Edition and accompanying MP3 audio bookmarks. Appellants’ appeal dismissed. Not disputed that consent pursuant to Copyright Act (Can.), could be either express or implied.
Test to be applied objective with focus on whether owner of copyright can be presumed to have consented to otherwise infringing actions. Subjective belief in consent not particularly relevant.
Evidence established there was no genuine issue with respect to consent. Respondent filed material indicating he encourages followers to reflect on guidance he provides and believes that availability and level of circulation of his teachings not
satisfactory but these facts insufficient to establish consent.
Only inference to be drawn on evidence was that publication of Golden Edition done without consent of respondent. Appellants did not establish any defence based on laches, detrimental reliance or acquiescence.
Facts did not establish that respondent had appropriate knowledge of appellants’ activities at relevant time.

Aga Khan v. Tajdin (Jan. 16, 2012, F.C.A., Nadon, Sharlow and Gauthier JJ.A., File No. A-59-11; A-60-11) Decision at 329 D.L.R. (4th) 521, 199 A.C.W.S. (3d) 1280 was affirmed. 211 A.C.W.S. (3d) 440 (13 pp.).

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